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OPML Chapter Eleven continued: There is personal good news and community bad news. My video has been restored after I filed a DMCA Counter-Complaint with YouTube, but others still are yanked

jim — Tue, 06 Feb 2007 16:47:25 +0000

Background summary of my experience with video yanking by Viacom

Good news

Here is the communication I just received from YouTube:

Dear Mr. Moore,

Viacom International has retracted its copyright claim with respect to the
video:

http://youtube.com/watch?v=QUzOP42dg1I

This content has been restored and your account will not be penalized.

Sincerely,

The YouTube Team

Bad News

Other innocent folks are still having their videos yanked, and/or are just realizing they’ve been yanked (check yours if you haven’t yet!).

Here is a sample of the mail coming into YouTubeViacom at gmail.com. It does make you wonder what Viacom was thinking:

From: ZZalgern0n
Date: Feb 6, 2007 12:29 AM
Subject: my video was yanked
To: http://www.ZZalgern0n.com
Situation summary at TopTenSources: Organize with others if the Viacom Sweep caught up your personal video

Google Blog Search for “Viacom YouTube”

My first post about being “caught up in the sweep.”

Who owns this video???

John Dvorak Uncensored on “Viacom Idiots”

Cory Doctorow of BoingBoing on “Viacom terrorizes YouTube with bullshit DMCA notices”

For most of this day I have departed from my usual posting of chapters of my book, OPML, to comment on the dispute between Viacom and YouTube over 100,000 videos that Viacom has asked YouTube to take down. My own personal video was caught up in the sweep “by mistake” as I presume were the videos of thousands of other folks.

This dispute is highly relevant to the OPML vision. The OPML vision is that users–ordinary folks–can collect, comment on, assemble and share elements of digital culture.

YouTube and its owner Google have come down firmly on the side of this vision. OPML and similar “meta languages” are ways to create folios, indexes, directories, lists and mashups of the content that is strewn across the web. Google has made the first stage of the OPML vision possible by indexing this content. Google has enabled astonishingly easy and comprehensive access to the riches of the digital landscape.

Google has found a way to fund their service from advertising, and in the process has developed a business model for working with others in the web ecosystem, others who provide the richness that is the new media landscape. And Google has increasingly found ways to enable small content producers, whether bloggers or video makers, to monetize their content. Many may question the revenue split between Google and others, but few would want Google to go away. Google has been a remarkable promoter of open public digital creativity.

Viacom and other traditional media companies have a different model. Their model is to find exceptional talent, develop that talent to the highest level, and then make the expressions of talent available for a hefty fee. Their model is to create scarcity. They invest millions in self-promotion for their stars, in order to create a taste for what only their stars can do. Then they lock down the creative production of these stars, and charge dearly for access.

The new model will not, in my view, favor Viacom and scarcity. It will create abundance beyond Google.

» YouTube: Is Viacom hurting innocent YouTubers? | Digital Markets | ZDNet.com

jim — Sat, 03 Feb 2007 02:11:21 +0000

» YouTube: Is Viacom hurting innocent YouTubers? | Digital Markets | ZDNet.com
Donna Bogatin has expanded the discussion by suggesting that YouTube and Google are the real villains, not Viacom. Her argument is that Viacom is only protecting its rights against what she sees as a parasitic Google business model. She seems to believe that if I am to be upset at anyone for taking down my personal video on YouTube, it should be YouTube for complying with the DMCA and the Viacom DMCA request.

Let me clarify my position: Viacom is the source of the request to take down my video. Viacom had an obligation to make sure that it was correct in its belief that my video violated its copyrights. My video is wildly innocent. Really. Visit it. Spend twenty seconds making your own judgement.

If Viacom made this sort of mistake thousands of times, presumably because it used spiders to decide which videos to request be removed, then its actions resulted in a massive disruption of the comfort of thousands of innnocent uers of the service.

Finally, let me say that I did not seek this fight. I have lately become fascinated by video, and am a reasonably big personal user of YouTube. My big interest is videos of performers of “roots” music. For example, here is my brother Dave Moore’s music site, which depends on YouTube. I was genuinely stunned when I opened my Yahoo mailbox this afternoon, and say a DMCA Complaint notice. I was upset when I realised that my personal video had been presumptively judged guilty, and taken down.

In her column, Donna goes after me and the Berkman Center, and others in the free culture movement, arguing that we are being bought off by Google, and thus are softpeddling YouTube in this dispute. Wooo, Donna. Hang on there. This thing just started this afternoon. And it was not started by YouTube, and it certainly was not started by me. There are any number of other things I would have liked to do with my time today.
Donna has argued in other posts that there is a kind of economic conspiracy between those advocating “free culture” and Google.

Google forges ahead in its misssion to codify its “right” to perpetuate a $150 billion market cap business model based on selling ads against content it has not compensated IP owners for and that it has no explicit legal right to exploit commercially.

She implies that I am going soft on YouTube and hard on Viacom, and I am perhaps part of a movement funded by Google. She points out that I have been associated with the Berkman Center for Internet & Society at Harvard, and that Berkman and the Stanford Center for Internet & Society founded “Chilling Effects” as a clearinghouse for combating cease-and-desist notices. She calls out fellow Berkmanite and friend Wendy Selzer by name. Wendy, many of you know, is one of the most dedicated and devoted of defenders of information freedom working today. Donna implies that because Google has given money to those in the free culture movement, that the movement is tainted. She subtly implies that I might be doing the bidding of Google in expressing my anger at Viacom. Crazy!! All I can say is that Berkman and Stanford and many others–including me–come to our various positions on free culture, and on Google–without presuppositions. We are hardly available to be bought by Google! In any cases, funding for centers like those at Harvard and Stanford come from many many individuals and companies. The funders do not set the agenda. Hardly. If anything they go along for the ride and hope for the best!

But in the interest of dialogue, go read Donna’s article, link above. Here is an excerpt, fair use:

Moore may feel he is an innocent YouTuber, but he is not an uninterested YouTube bystander. The “local talent” he is enlisting is undoubtedly colleagues advocating on behalf of “Chilling Effects,” an “online clearinghouse for analysis and response to cease-and-desist notices sent to Internet users.”

According to the “Berkman Center for Internet & Society”:

Founded at the Berkman Center by Fellow Wendy Seltzer, Chilling Effects is a joint project of the Electronic Frontier Foundation and law school clinics at Harvard, Stanford, Berkeley, the University of San Francisco, and the University of Maine. Do you know your online rights? Have you received a cease and desist letter asking you to remove information from a Web site or to stop engaging in an activity? Are you concerned about liability for information that someone else posted to your online forum? If so, Chilling Effects is for you. Chilling Effects aims to help you understand the protections that the First Amendment and intellectual property laws give to your online activities.

Chilling Effect collaborator Stanford Center for Internet and Society receives funding from YouTube corporate parent Google, as I report and analyze in “Google’s $2 million Stanford ‘fair use’ underwriting”:

Google has funded, to the tune of $2 million, Stanford University’s Center for Internet and Society to “change the way content owners approach fair use issues.

I put forth Google’s strategy to subsidize academic institutions in championing legal doctrine favorable to Google’s business model..

Donna Bogatin, ZDNet.com

I heartily support Donna’s continuing analysis of the relationships among business models and public policy and law, as well as funding for “reform.” I myself have written a good deal about the curruption of “patent reform” by the world’s largest patent filers.

In this case, however, I can assure Donna that I am calling things as I see them. I do wish that YouTube had stepped up to do more on my behalf and that of others. I would have appreciated help in filing a challenge. I would appreciate being able to gain access to my own disputed video, in part to demonstrate how innocent it is. It took great effort this afternoon to locate another copy of the video, given that it was not exactly archival material.

On the other hand, the DMCA ties YouTube’s hands. Penalties are sharp. So Viacom was able to force YouTube to act, and to act in a presumptive and sudden manner that not only disrupted the YouTube service, but made for a bad day for many thousands of YouTube users. That, in my view, was not a good thing for Viacom to do. I don’t doubt the reasonableness of their making money from Jon Stewart. But I do think that they should have set their net with a finer filter. Part of their argument against YouTube and Google is that they have been slow to build a content filter. Well, Viacom has now demonstrated what happens when you build a filter too quickly. Inadvertantly it has helped make the argument that filtering is difficult.

Added Sunday 2/4/07: List of Relevant links

Situation summary at TopTenSources: Organize with others if the Viacom Sweep caught up your personal video

Google Blog Search for “Viacom YouTube”

My first post about being “caught up in the sweep.”

Who owns this video???

John Dvorak Uncensored on “Viacom Idiots”

Cory Doctorow of BoingBoing on “Viacom terrorizes YouTube with bullshit DMCA notices”

100,000 “Mistakes” by Viacom?

jim — Sat, 03 Feb 2007 01:19:41 +0000

YouTube and Viacom: TopTenSources has organized a way to send in your DMCA notices and see how many folks were victimized by the Viacom “mistake.”

As everybody knows now, Viacom forced YouTube to take down 100,000 videos today, and to send out tens of thousands of DMCA Complaint notices. I received one for a genuine personal video that is certainly not infringing on Viacom. Here is the video, now hosted at Google Video. Let me know what you think!
John Palfrey of the Berkman Center blogged about my situation, and he received a very nice email from a man named Michael Fricklas of Viacom. Mr. Fricklas apologized for the mistake, and said that it had already been corrected. Hmmm. When I last checked, which was just a minute ago, the video was blocked. You can try it yourself by clicking here. If they’ve restored it, you will view my simple minded tube–if they’ve not, you will see

This video has been removed at the request of copyright owner Viacom International Inc. because its content was used without permission

From: “Fricklas, Michael”

Date: Fri, 2 Feb 2007 18:21:02

To:

Subject:

Saw your blog post about your video coming down (at least I think it was your post)

There’s a simple procedure for protesting a takedown – but when we saw your blog we corrected the error. We actually do view (supposedly) every video being taken down, but sometimes stuff gets through.

Sorry for any problem

Now I must ask: Do you realy really think they viewed every video? David Weinberger speculates that Viacom used spiders to search for “Leon Redbone” and found my video about “Sunday nite dinner at Redbones in Somerville, Mass.” Yup. LOL, as they say.

PS, David wondered what would happen if blogosphere folks uploaded geniune personal videos with the names of various Viacom stars–just to see what happens.

Viacom owns this?????? The original of this video was taken down from YouTube at Viacom’s request

jim — Sat, 03 Feb 2007 00:23:40 +0000

Sunday nite dinner at Redbones in Somerville, Mass, a very short video by Jim Moore – Google Video

Play the video. I think it speaks for itself.

Viacom will of course say that this is a “mistake.” The question is, out of the 100,000 videos taken down today on YouTube at Viacom’s request, how many “mistakes” were there? 1? 10? 10,000? If you believe you were a victim of a “mistake” by Viacom, please forward your DMCA Complaint email to youtube.viacom at gmail.com, which is a group sponsored by TopTenSources and some folks associated with Harvard Law School.

For current news and action, check periodically at http://www.toptensources.com/topten/YouTube-and-Viacom

Fight back for free culture!

The Viacom International Copyright DMCA debacle about YouTube videos–should we counter-sue???

jim — Fri, 02 Feb 2007 19:07:39 +0000

Added Sunday 2/4/07: Here is a site to visit if your personal videos were removed and you want to mobilize.

I just received a notice that a video of mine has been removed from YouTube because of a complaint by Viacom. The video, for the record, is a short home clip, about 30 seconds, of me and several friends having dinner in a ribs place in Somerville. That this is the case should not be confusing to Viacom, given that the video is titled:
Sunday nite dinner at Redbones in Somerville, Mass: http://www.youtube.com/watch?v=QUzOP42dg1I

Here is the email I just got from YouTube. I support YouTube in sending this on to me and taking down the video. What else are they to do? Of course, now they have set up a situation where I perhaps have legal standing to go after Viacom. Of course I can’t afford to do this alone–but perhaps now I am part of a “class”–as in “class action law suit?” Anyone else interested. This blog, by the way, is hosted at Harvard Law School Berkman Center for Internet & Society, so we should be able to get some local talent to help out.

Here is the YouTube notice I just received:

YouTube | Broadcast Yourself™

Dear Member:

This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by Viacom International Inc. claiming that this material is infringing:

Sunday nite dinner at Redbones in Somerville, Mass: http://www.youtube.com/watch?v=QUzOP42dg1I

Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to avoid future strikes against your account, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube’s copyright policy, please read the Copyright Tips guide.

If you elect to send us a counter notice, to be effective it must be a written communication provided to our designated agent that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):

A physical or electronic signature of the subscriber.

Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriberis address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

Such written notice should be sent to our designated agent as follows:

DMCA Complaints
YouTube, Inc.
1000 Cherry Ave.
Second Floor
San Bruno, CA 94066
Email: copyright at youtube.com

Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

Sincerely,
YouTube, Inc.

Copyright © 2007 YouTube, Inc.

It looks like what Viacom has done to YouTube is simply search everyViacom trademarked and copyrighted term against every Tube name, and then asked YouTube to pull down the videos, under the terms of the onerous and notorious DMCA. YouTube has now pulled the videos. Unfortunately, I suspect that tens of thousands of these videos are completely legitimate.

YouTube – My Videos—Viacom forced YouTube to take down my video

jim — Fri, 02 Feb 2007 17:14:08 +0000

[See the more complete post for perspective]
YouTube – My Videos

Sunday nite dinner at Redbones in Somerville, Mass
00:21
James Corbett, author of the Open Irish Directory (and visiting from Ireland), A James Corbett, author of the Open Irish Directory (and visiting from Ireland), Adam Green and Mike Kowalchik from Grazr, Juliette from TA Associates (in civilian role, with Mike), Jim Moore from OPMLWorkstation. Baby back ribs courtesy of Redbones Bar, Somerville, Massachusets, USA (more) (less)
Tags: James Corbett Open Irish Directory Ireland Adam Green Mike Kowalchik Grazr Julliette Jim Moore OPMLworkstation Redbones
Added: September 24, 2006, 04:43 PM
Views: 92
Recorded: 2006-09-24
Rating: This video has not yet been rated. Comments: 0 | Playlists: 0
File: MVI_0783.AVI
Broadcast: Public Video | Status: Rejected (copyright infringement)

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